TETTEH TEINOR AND 2 OTHERS vs. NII IDDRISU AYAA TETTEY AND 3 OTHERS [2015]DLCA5281

Date	2015-02-26
Suit No.	CIVIL APPEAL NO.H1/162/2014
Citation No.	[2015]DLCA5281

MARFUL- SAU JA (PRESIDING)

GYAESAYOR JA

CECILIA SOWAH JA

SAMUEL ADJEI BOAHENE FOR DEFENDANT/APPELLANT

KWAME AGATI FOR PLAINTIFF/RESPONDENT

[2015]DLCA5281
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													<main id="main" class="content" style="min-height: 60rem" >TETTEH TEINOR AND 2 OTHERS<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>NII IDDRISU AYAA TETTEY AND 3 OTHERS<o:p></o:p>(DEFENDANTS/
APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL
NO.H1/162/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;26TH FEBRUARY, 2015<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA: - This appeal is taken from the judgment of
the High Court, (Fast Track Division) Accra dated the 28th of
October 2009. The plaintiffs who are the respondents herein had acquired
parcels of land from Princeton Multi-Purpose Estates Agency, which claimed it
had acquired a large parcel of land from the Odai Ntow Family for Estate
Development. The defendants herein referred to as the appellants disputed the
interest of the respondents in the land as a result of which the respondents
initiated this action for the following reliefs:-<o:p></o:p>&nbsp;1. Declaration of title to the respective
plots of land acquired by the respondents.<o:p></o:p>2.
An order of perpetual injunction against the defendants and their servants.<o:p></o:p>3.
General Damages for trespass.<o:p></o:p>4.
Costs.<o:p></o:p>As
observed earlier the appellants disputed the claims of the respondents but did
not counterclaim for any relief against the respondents. The case proceeded to
trial and judgment was entered for the respondents. Aggrieved by the said
judgment the appellants have appealed to this court praying that the judgment
so entered against them be set aside. The appellants by their notice of Appeal
filed on 9th of November 2009 formulated one ground of appeal, which
was that the judgment was against the weight of evidence adduced at the trial. <o:p></o:p>In
the notice of appeal the appellants gave notice that they will file additional
grounds of appeal and this they did on the 15th of March 2010.
However, it is clear from the record that without the leave of this court
appellants Counsel argued the additional grounds of appeal. Counsel for the
respondents in his written submission rightly took objection to the step taken
by the appellants, but nevertheless responded to the said additional grounds so
argued without the leave of this court.<o:p></o:p>The
record of appeal also shows that Counsel for appellants upon the objection
raised by respondents Counsel rushed to this court and sought leave
posthumously to ratify the procedural flaw in his written submission, which was
arguing the additional grounds without leave. This court differently
constituted on the 29th of July 2014 granted the appellants
application for the court to admit the already argued additional issues. The
court on the said date ordered as follows:-<o:p></o:p>‘’BY COURT: - Application
granted as prayed. Leave is hereby granted the applicant to admit Additional
Grounds of Appeal filed on 15/3/2010 and argued in their written submission
filed on 12/5/2014. Let the Defendants/Appellants be at liberty to reply to the
Plaintiffs/Respondents/Respondents response to their submission within 14 days
from today. No order as to costs.’’<o:p></o:p>With
the above order from this court the objection raised by Counsel for respondents
in his written submission on the additional grounds so argued will be laid to a
peaceful rest since this panel is bound by the order so made. I observed that
Counsel for respondents did response to the additional grounds as argued and
for that matter as far as the record holds no miscarriage of justice has been
suffered by the respondents.<o:p></o:p>Now
that I have addressed the procedural issues as above, I shall now look at the
grounds of appeal so argued and how they assist this court in determining the
appeal. In this judgment I have referred to the reliefs claimed by the respondents
through their writ of summons and I have also indicated that from the record
the appellants did not have a counterclaim against the respondent. The effect
of this in law is that as between the parties the respondents had a heavy
evidential burden to discharge since they have sued for declaration of title to
their respective lands. Upon examining the record of appeal, I find in the
light of the pleadings and the evidence adduced at the trial, that one
fundamental issue stands out for resolution in this appeal.<o:p></o:p>However,
before I introduce this fundamental issue it is important to observe the
following facts from the record which are undisputed.<o:p></o:p>1.
Both parties agree that the land in dispute originally was owned by the Odai
Ntow Family.<o:p></o:p>2.
The documents relied on by the grantors of the respondents and the appellants
all recite a judgment of the High Court dat</main>